Functional matter cannot serve as a trademark, that is, an indicator of source for goods. See Qualitex v. Jacobson Prods. Co., 514 U.S. 159, 165 (1995) (noting that a functional product feature “cannot serve as a trademark”); In re Penthouse Int'l, Ltd., 565 F.2d 679, 681 (CCPA 1977) (“A feature dictated solely by ‘functional' (utilitarian) considerations may not be protected as a trademark . . . .” (quoting In re Deister Concentrator Co., 289 F.2d 496, 502 (CCPA 1961)); In re Everson, No. 97104306, 2026 TTAB LEXIS 75. 

A mark is functional “‘if it is essential to the use or purpose of the article or if it affects the cost or quality of the article,' that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage.” Qualitex, 514 U.S. at 165 (quoting Inwood Labs. v. Ives Labs., 456 U.S. 844, 850 n.10 (1982)). Accordingly, color marks may be found functional where, inter alia, the relevant color improves the safety or visibility of a product or the product's user; facilitates identification of a particular type of product; serves a particular function in the relevant market or industry; or simply makes the product more useful to the user. See, e.g., Qualitex, 514 U.S. at 169 (suggesting that “the color of a medical pill [may be functional] where that color serves to identify the kind of medication (e. g., a type of blood medicine)” (citing Inwood Labs, 456 U.S. at 853, 858 n.20)); Brunswick Corp. v. British Seagull Ltd., 35 F.3d 1527, 1530, 1533 (Fed. Cir. 1994) (affirming Board's decision that the color black is functional as applied to outboard engines for boats because “it is color compatible with a wider variety of boat colors and because objects colored black appear smaller than they do when they are painted other lighter or brighter colors”); In re Florist's Transworld Delivery, Inc., No. 77590475, 2013 TTAB LEXIS 115, at *23-24 (finding the color black, as applied to boxes for flowers and floral arrangements, functional because “there is a competitive need for others in the industry to use the color black in connection with floral arrangements and flowers,” especially in the contexts of bereavement and certain holidays); Saint-Gobain Corp. v. 3M Co., No. 91119166, 2007 TTAB LEXIS 82, at *77-78, *82 (finding the color purple, as applied to sandpaper, functional because, inter alia, it facilitates color coding in the field of coated abrasives and it avoids streaking and masks other imperfections in sandpaper); In re Ferris Corp., No. 74654765, 2000 TTAB LEXIS 709, at *14 (finding the color pink, as applied to wound dressings, functional because it “is one of the best or at least one of the few superior ‘flesh colors' available for wound dressings” that “blends well with (primarily Caucasian) skin tone”); In re Howard S. Leight & Assocs., No. 74361481, 1996 TTAB LEXIS 4, at *5 (finding the color coral, as applied to industrial earplugs, functional because it makes earplugs “more readily visible, allowing for easier and quicker safety checks”); In re Orange Commc'ns, Inc., No. 74107141, 1996 TTAB LEXIS 22, at *17 (finding that the colors orange and yellow, as applied to pay phones and pay phone booths, are functional because the colors would render the phones and phone booths “demonstrably more visible than phones presented in almost any other color”); Kasco Corp. v. S. Saw Serv. Inc., No. 92018761, 1993 TTAB LEXIS 19, at *13 (finding the color green, as applied to wrappers for meat-cutting band saw blades, functional because it facilitates color coding, “enabling the purchasers and users of the saw blades to easily distinguish” one type of blade from another).

The USPTO considers the “Morton-Norwich factors” for determining whether a proposed trademark design is functional:

1. the existence of a utility patent disclosing the utilitarian advantages of the design;
2. advertising materials in which the originator of the design touts the design's utilitarian advantages;
3. the availability to competitors of functionally equivalent designs; and
4. facts indicating that the design results in a comparatively simple or cheap method of manufacturing the product.

In re Morton-Norwich Prods., Inc., 671 F.2d 1332, 1340-41 (CCPA 1982); In re Becton, Dickinson & Co., 675 F.3d 1368, 1374 (Fed. Cir. 2012) (citing Valu Eng'g, Inc. v. Rexnord Corp., 278 F.3d 1268, 1274 (Fed. Cir. 2002)).

Furthermore, “as a general matter, alternative designs need not be considered if the other evidence of record establishes functionality.” Everson, 2026 TTAB LEXIS 75, at *15; see Becton, 675 F.3d at 1376 (stating that there is no need to consider availability of alternative designs “if functionality is found based on other considerations”).

The TTAB recently affirmed a refusal to register the color "green" (or the equivalent of Pantone Matching System 2297C) as a trademark for "Construction and Surveyor Tripod" for being functional and therefore unregistrable. In re Dave White's SitePro, LLC, Ser. No. 98404066 (TTAB Aug. 25, 2026).

Notably, Applicant's website stated: "Out-performs others and gets seen on the jobsite with UV-resistant high-visibility," and "the first hi-vis heavy-duty composite tripod designed for all environments."

Here, the evidence establishes that, for safety and ease of use, high visibility can be a desirable, sometimes necessary, characteristic for gear used in construction environments, especially surveyor tripods that might appear among various other items and need to be seen from great distances. The evidence also shows the color claimed in the proposed mark is one of a few colors that provide high visibility in these environments. Thus, the high visibility provided by the color claimed in the proposed mark is more than a product feature; it fulfills an essential purpose or function of the goods and affects their quality and usefulness, such that granting Applicant exclusive right to the use of the color would result in a significant nonreputation-related disadvantage to competitors. The fact that Applicant and its competitors tout the high visibility of their bright green tripods reinforces this conclusion. See Kistner Concrete Prods. v. Contech Arch. Techs., Inc., No. 92048733, 2011 TTAB LEXIS 8, at *41 (“If a seller advertises the utilitarian advantages of a particular feature of its product, this constitutes strong evidence of functionality.”).

***

Further, while other colors may provide similar functionality, the record establishes that the color at issue here is one of a very few colors that provide the utilitarian advantages that Applicant and others tout. Cf. Florist's Transworld Delivery, 2013 TTAB LEXIS 115, at *24 (“Allowing singular entities to control certain colors, in a field where color is both dynamic and has significance, would severely limit the availability of appropriate color choices to consumers seeking [particular] floral arrangement gifts.” (cleaned up)); Saint-Gobain, 2007 TTAB LEXIS 82, at *82 (“A deep purple color would be one of a small number of dark colors that would help manufacturers dye their products to avoid streaking or other imperfections.”). 

Accordingly, the TTAB affirmed the functionality refusal because allowing exclusive use of the claimed color would put competitors at a significant non-reputation-related disadvantage, thereby hindering competition, citing Qualitex, 514 U.S. at 165; Brunswick, 35 F.3d at 1532 (“[I]f the use of color on the applicant's goods serves a non-trademark purpose that hinders competition, the de jure functionality doctrine precludes trademark protection.”); In re Bose, 772 F.2d 866, 872 (Fed. Cir. 1985) (“If the feature asserted to give a product distinctiveness is the best, or at least one, of a few superior designs for its de facto purpose, it follows that competition is hindered. Morton-Norwich does not rest on total elimination of competition in the goods.”); and In re Van Valkenburgh, No. 77025789, 2011 TTAB LEXIS 1, at *20 (“[T]he mere fact that other designs are available does not necessarily mean that applicant's design is not functional.”).

The TTABlog noted that the last time the Board found a single color mark to be registrable may have been In re Hodgdon Powder Company, Inc., Ser. No. 85947962, 119 USPQ2d 1254 (TTAB 2016), involving the color white for "preformed gunpowder charges for muzzleloading firearms."